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BY ARTHUR S. LEONARD | The Brooklyn-based Second Department of the New York Appellate Division has affirmed a family court ruling recognizing the parental status of a lesbian co-parent seeking visitation with two children conceived through donor insemination while she was legally partnered with their birth mother, first as a California domestic partner and then as a California spouse.

The birth mother, identified in press reports as Farah Martin, and the two children now live in Suffolk County, Long Island, while Martin’s ex-spouse, Kelly Steagall, lives in Arizona.

The Second Department panel unanimously upheld a March 2015 decision by Suffolk County Family Court Judge Deborah Poulos.

Writing for the panel, Justice Sheri S. Roman works methodically through several complex issues to arrive at complete agreement with Poulos’ ruling, which not only upheld Steagall’s standing to seek visitation but also rejected Martin’s attempt to institute a paternity action against the sperm donor for both children.

According to Roman’s opinion, the couple began their relationship in 2000 and became registered domestic partners in California four years later. Shortly afterwards they asked a close friend, identified as Andrew S., to donate sperm so they could have a child together. Steagall carried the child, whom Martin legally adopted. That child is not a subject of this lawsuit.

When the couple decided to have a second child, Andrew again donated sperm, with Martin, this time, carrying the child, born in March 2007 and identified in Roman’s opinion as Z.S. Steagall was listed as a parent on the birth certificate and the child has her last name.

During the brief period of time in 2008 when marriage was legal in California, before Proposition 8 took effect, the couple married, and the following year, Martin gave birth to another child, again with the assistance of Andrew. That child, identified as E.S., also was given Steagall’s last name and again she was listed on the birth certificate.

Shortly after the family moved to New York State in 2012, Steagall and Martin split up and Steagall moved to Arizona the following year. The children remained in New York with Martin, but with relations between the women strained, Steagall filed a visitation petition in Suffolk County Family Court regarding both Z.S. and E.S. She argued that the women were legally married in California and she was a legal parent of both children, whom she had helped raise until the couple split up.

Martin moved to dismiss the case, arguing that Steagall lacked standing under New York law to seek visitation, invoking the old 1991 New York precedent of Alison D. v. Virginia M., under which same-sex co-parents were deemed to be “legal strangers” to their children unless they had formally adopted them. She also sought to drag Andrew into the case as the children’s biological father by filing a paternity petition. Andrew was a close friend of the two women and formed a loving relationship with the children, but he never sought to establish his paternity. Evidently, Martin hoped that if the court declared Andrew their legal father, that would cut off Steagall’s claim, because under New York law, a child cannot have more than two legal parents at the same time.

Martin argued that Z.S. was born before the women were married, and neither child was conceived in accordance with California or New York donor insemination statutes, which require the involvement of a doctor and written consent from the birth mother’s spouse in order to establish the presumption of their parental status. Both children were conceived through insemination at home.

Despite the fact that Alison D. remains a precedent in New York, LGBT family law has advanced here in recent years, as it has in California. Martin’s arguments, the appeals panel concluded, clearly lack merit.

Under New York’s 2011 Marriage Equality Act, the spouse of a biological mother is presumptively the child’s parent, as it would be in the case of an opposite-sex marriage. New York courts have also applied the doctrine of “comity” to find that a parent of a child under the law of another state is their parent in New York, despite the Alison D. precedent. Under California’s domestic partnership law, the parental presumption applied to the registered partner of a child’s biological parent.

The Suffolk County Family found that these presumptions applied to Steagall’s parental status regarding the two children, and the Appellate Division agreed.

The court rejected Martin’s argument that the failure to follow legal donor insemination procedures barred Steagall from claiming parental status, noting that court decisions in both California and New York establish that the donor insemination statutes are not the exclusive way to create parental rights. Steagall’s status as a parent was established under California’s domestic partnership law and under the marriage equality regimes in both states, and she was also listed on the birth certificates as a parent to both children, who were given her surname. Clearly the women intended her to be the children’s parent when they were born, the court concluded.

The Appellate Division also upheld Judge Poulos’ decision to dismiss Martin’s paternity petition. Poulos determined it was filed “in an attempt to terminate Kelly S.’s parental rights,” which would be inconsistent with the case’s factual findings.

“The record reflects that the parties made an informed, mutual decision to conceive the subject children via artificial insemination and to raise them together, first while in a registered domestic partnership in California, and, later, while legally married in that state,” Roman wrote. “Additionally, the children were given Kelly S.’s surname, Kelly S. was named as a parent on each birth certificate, and the parties raised the children from the time of their births, in March 2007 and April 2009, respectively, until the parties separated in or around the summer of 2013. Under the circumstances presented, the court properly determined that Farah M. may not rebut the presumption of parentage in favor of Kelly S. arising under California law by filing paternity petitions against the sperm donor and correctly determined that Kelly S. has standing to seek visitation with the subject children at a best interests hearing.”

Kelly Steagall’s appellate attorney is Christopher J. Chimeri of Hauppauge. Farah Martin is represented by Sari M. Friedman of Garden City. Regina M. Stanton was appointed by the court to represent the interest of the children.

Friedman told Newsday that she doubted her client would appeal, but she criticized the decision as “not good law.” Steagall told the newspaper, “As unfortunate as the situation is, I’m happy that some good came out of my rough situation and could help families in the future.”

On June 2, the New York Court of Appeals, the state’s highest bench, will hear oral argument in Matter of Brooke S.B. v. Elizabeth A. C.C., an appeal challenging the continued validity of Alison D. v. Virginia M. The Court of Appeals reaffirmed the holding of Alison D. as recently as 2010, but since then Democratic Governor Andrew Cuomo has appointed six new judges of the seven-member court, leaving only one of former Republican Governor George Pataki’s appointees on the bench, so it is highly possible that the court allowed this appeal to proceed with a view to overruling what is a very obsolete precedent.

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